Saturday, January 31, 2009

Are you a Texas legislator having trouble deciding what behaviors to criminalize next? If so, Dallas attorney Robert Guest has helpfully proposed the Texas Criminal Law Generator, which he describes thusly:

Every two years our most electable citizens gather in Austin to enact new criminal laws. Passing a new criminal law can be hard. You must invent a crisis that only a new criminal law can solve, and then convince other reps to vote for it. This takes time away from important activities like boozing it up with lobbyists or pandering to special interests. To help streamline the process I have created the Texas Criminal Law Generator. This system creates instant "tough on crime" legislation that is guaranteed to pass and be signed by Rick Perry!

If you are a politician who needs the appearance of "doing something about crime" without being distracted by details like justice, rights, or liberty, the TCLG is for you.

Questionable testimony by police comes up most often in firearm- or drug-possession cases in which officers often testify that a defendant had a bulge in his pocket -- which they thought might be a gun -- or dropped drugs in plain sight as they approached him, giving the officers the right to seize the contraband. Defense lawyers say in many of these cases, officers are "testilying" and that the guns or drugs were actually discovered when their clients were unjustly frisked by officers. They also say testilying frequently occurs in more serious cases. ...

Criminal-justice researchers say it's difficult to quantify how often perjury is being committed. According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized.

"It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers," though it's difficult to detect in specific cases, said Alex Kozinski, a federal appeals-court judge, in the 1990s. That's because the exclusionary rule "sets up a great incentive for...police to lie."

Naturally, as you might expect, that is not a consensus opinion:

Police officers don't necessarily agree, says Eugene O'Donnell, a former police officer and prosecutor who teaches law and police studies in New York. "Perjury is endemic in the court system, but officers lie less than defendants do because generally they aren't heavily invested in the outcome of the cases," he says.

Somehow, though, I find little comfort in the assertion that "officers lie less than defendants do"! One would also expect them to commit "less" burglaries than defendants, but if police are committing any it's a serious problem. While it's certainly true that police "generally" aren't as heavily invested as defendants, in serious cases some of them are. There's little doubt in my mind that most police officers have too much integrity to lie intentionally on the stand, but it only takes a few bad apples to spoil a barrel.

In Boston, a federal judge last week ruled that a police officer there falsely testified at a pretrial hearing in a gun-possession case about the circumstances of the defendant's arrest. The judge, Mark Wolf, is considering sanctions against the prosecutor for not immediately disclosing that the officer's testimony contradicted what he told prosecutors beforehand.

Efrati identifies the motive for police testilying as getting around the exclusionary rule, and discusses a fascinating study following the rule's implementation at the state level almost 50 years ago:

Testilying may have taken off after a 1961 Supreme Court decision boosted the exclusionary rule by requiring state courts to exclude -- or throw out -- some evidence seized in illegal searches, such as when police frisk people without probable cause or search a residence without a warrant.

Immediately after the decision, Mapp v. Ohio, studies showed that the number of annual drug arrests in the U.S. -- most cases are prosecuted in state court -- didn't change much but there was a sharp increase in officers claiming that suspects dropped drugs on the ground. "Either drug users were suddenly dropping bags all over the place or the cops were still frisking but saying the guy dropped the drugs," says John Kleinig, a professor at John Jay College of Criminal Justice.

SCOTUS recently began the process of scaling back the exclusionary rule, notes Efrati, allowing illegally gathered evidence to come into court if police say the error was made in good faith:

This month's Supreme Court decision added an exception to the exclusionary rule by holding that the prosecution of an Alabama man for drug- and firearm-possession charges was valid, even though the contraband was found after the man was wrongly arrested and searched. Police officers had mistakenly thought he was subject to an arrest warrant.

Throwing out evidence because of wrongful searches and arrests "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free," wrote Chief Justice John Roberts.

So for the Roberts court, illegal evidence and testilying are concerns to be weighed against "letting guilty and possibly dangerous defendants go free" - in other words, apparently tolerable under some circumstances.

Personally, I disagree with Efrati that limiting the exclusionary rule might reduce "testilying." To me, it looks like Roberts' decision in Herring makes testilying more likely, not less, because officers will now concoct stories to pretend that intentional violations were innocent errors; at least, that's the door Justice Roberts opened for them.

Such rulings leave the system with very few remaining tools to hold police accountable for violating constitutional rights. The exclusionary rule may be a flawed remedy, but in the modern American legal system it's virtually the only means available to counteract police illegally seizing evidence. Activist judges have whittled away civil liability for police and prosecutors to the point where it's either nonexistent or virtually meaningless.

After Texas' most high-profile example of "testilying" in the Tulia drug sting case, legislation was filed to require corroboration for police officer testimony in undercover drug stings. Police unions fought the idea like they were defending the Alamo, and the bill was scaled back to only require corroboration for undercover drug informants - a significant step forward, but hardly a remedy for police testilying.

As SCOTUS seems bent on creating loopholes in the exclusionary rule that encourage police to lie, what possible preventive or punitive measures might help identify or elmiminate testilying? And which branch of government should we be looking to to address the problem?

Friday, January 30, 2009

How many more cases do we need to see where prosecutors withhold exculpatory evidence from the defense before the state bar, the courts or the Legislature act to sanction them?

Former death row inmate Michael Toney has been moved to the Tarrant County jail after his conviction was overturned last month because of Brady violations where Tarrant prosecutors failed to turn over exculpatory evidence to the defense before Toney's trial 23 years ago, reports the Fort Worth Star Telegram ("Inmate moved from death row to Tarrant County Jail," Jan. 30):

An appeals court overturned his conviction in December after the Tarrant County District Attorney’s office acknowledged that at least 14 documents favorable to his defense were withheld by prosecutors during his trial.

Reports the Startlegram, "Toney has always maintained his innocence. No physical evidence connected him to the crime."

I'd mentioned in the comments recently that the prosecutor in the Tulia drug sting cases, Terry McEachern, is the only prosecutor in recent memory disciplined by the Texas state bar for Brady violations, i.e., for withholding exculpatory evidence, even though it happens quite frequently.

Harris County may scrap rigorous physical training and rigid military-style drills at its Delta Boot Camp in favor of a program that uses therapy to attack the emotional and behavioral problems that led the young people into crime, officials said Wednesday.

The county opened a juvenile boot camp in 1994 to offer chronic young offenders one last chance to shape up before they would be shipped off to do hard time at a Texas Youth Commission facility. Officials hoped the facility’s strong emphasis on military structure, drill and discipline would help the 14- to 16-year-old residents change from trouble-making boys into responsible men.

But Harris County Juvenile Probation chief Harvey Hetzel said Wednesday that research since has shown that young offenders are more likely to respond to counseling and education than to discipline alone.

“Our program’s weakness has always been the absence of a therapeutic component,” Hetzel said.

As seemingly with much of American criminal justice policy at the moment, this move arises from a pendelum finally swinging back from an era of too-harsh extremes:

Juvenile boot camps sprang up across the country in the early 1990s amid a national push to get tough on crime.

However, studies soon showed the facilities did not improve recidivsm rates for youths and in some cases were detrimental to young people who had experienced violence and abuse at home, said Gaylene Armstrong, an associate professor of criminal justice at Sam Houston State University who has studied juvenile boot camps extensively.

Treating juvenile offenders’ problems with substance abuse, mental illness and anger management, or even just offering them a basic education, was found to be more beneficial than having them run laps and do push-ups, Armstrong said.

“Even though from a public perspective, maybe some people would say, ‘These people did something bad, let’s really punish them,’ in the long term that’s not going to do much for us as a society because they’re going to end up back in the community and their problems aren’t going to be addressed,” she said.

The reasons lie in the history of the program, which was spawned by a Democratic Congress during the latter days of the Reagan Administration, aiming to bolster Democrats' "tough on crime" credentials during Michael Dukakis' failed presidential bid.

Byrne grants theoretically can pay for all sorts of criminal justice programs, but in most states they largely pay for Tulia-style drug task forces. National Republicans dislike the program on federalist grounds, believing that federal pork shouldn't pay for local law enforcement, while Dems are more likely to view backing Byrne grants as a way to avoid the "soft on crime" label.

Ironically, Barack Obama has been unsuccessful in his first efforts to reach across the aisle on his much-ballyhooed stimulus package - in part because it's larded with pork like Byrne grants that do nothing to stimulate the economy. Ending the Byrne grant program once and for all could be a terrific early opportunity to succeed in reaching out to Republicans on an issue they've championed, actually demonstrating bipartisanship instead of just talking about it.

Perhaps the nationwide airing of the Tulia, Texas documentary on PBS next month will give momentum to those in Washington who want to reach across the aisle to do something positive about which both parties could be proud.

The Stateline.org piece, in particular, includes great examples of methods being tried in other states to reduce incarceration costs. I was especially interested in this idea for improving probation:

In Arizona, the Republican Legislature teamed up with Democratic Gov. Janet Napolitano, a former prosecutor who was tapped for President Barack Obama’s Cabinet, to approve a program that rewards counties whose recidivism rate is significantly reduced. Kansas approved a similar program two years ago. Arizona’s program includes incentives for people on probation; they can reduce their sentences by 20 days for each month they comply with court-ordered conditions of their probation, such as making child-support payments and undergoing therapy.

Barbara Broderick, chief probation officer in Maricopa County, Ariz., said earned time credits for probationers provide a carrot-and-stick approach that previously focused only on sending delinquent offenders to jail or prison.

“What I didn’t have,” she told Stateline.org, “is the option to say, ‘Work with me. Lead a law-abiding life. Do the things the court has ordered."

In a little more than a month, we learn from the Innocence Blog, the US Supreme Court will hear arguments to determine whether prisoners have a constitutional right to post-conviction DNA testing when it could prove their innocence:

In a brief filed [Monday] at the U.S. Supreme Court, the Innocence Project argues that prisoners have the constitutional right to DNA testing that can prove their innocence. The court will hear oral arguments on March 2 in the case of Innocence Project client William Osborne, who was convicted in 1993 in Alaska of a rape he says he didn’t commit. Innocence Project Co-Director Peter Neufeld will argue on Osborne’s behalf.

“The issue in this case is whether a state can deny a prisoner access to DNA testing that was not available at the time of trial and has the potential to prove his innocence,” Neufeld said. “In the vast majority of cases, prisoners are granted DNA testing under state law or because prosecutors consent to testing without a court order. Alaska is the exception. It is the only state in the nation with no known case of a prisoner receiving DNA testing, either through court order or a prosecutor’s consent. This case involves a very important constitutional protection – one that is the only option for William Osborne.”

Reacting to news that the number of youth certified to stand trial as adults in Texas increased 30.9% after the passage of SB 103 in 2007, TYC's independent ombudsman recommended "that the Texas Legislature restore TYC’s jurisdiction over youths serving determinate sentences until they reach their 21st birthdays. TYC will maintain its existing policy of segregating students by age."

According to the report by the Ombudsman's office (pdf), which was requested by state Sen. Juan "Chuy" Hinojosa, "today’s higher adult certification rates are a serious, unintended consequence of an otherwise well-intentioned legislative change that reduced the maximum age of TYC jurisdiction and control from 21 to 19."

The new trend is especially pronounced among defendants who commit crimes at age 16 but don't make it into court until after their 17th birthday:

Although 17-year-olds are ordinarily not eligible for commitment to TYC because of their age, the numbers above represent those children who committed crimes while under the age of 17, but appeared in court after their 17th birthdays. Under the pre-SB 103 rules, the youngest of these children could have spent nearly four years in TYC if sentenced under determinate sentencing scheme. Today, this time-frame has been effectively reduced by more than half, making determinate sentencing a much less attractive option for judges and prosecutors.

The argument in 2007 for lowering TYC's maximum age for youth with determinate sentences was essentially twofold: It reduced the inmate population at a time when the agency was significantly understaffed, and it was supposed to reduce the chance that other youth at TYC would be victimized by the most serious offenders.

However, "Children serving sentences in adult prisons, as compared to children in the juvenile justice system, are five times more likely to be sexually victimized, eight times more likely to commit suicide, and twice as likely to be attacked with a weapon or beaten by corrections officers," said the Ombudsman.

What do you think: Should the Lege reauthorize TYC to house 19-20 year olds? I'm inclined to agree with the Ombudsman's recommendation, but am especially interested to see readers from juvenile justice fields discuss the pros and cons.

In the 1940s, California and Texas both created state agencies (CYA and TYC, respectively) based on something called the Model Youth Authority Act, which was promulgated by a legal reform organization called the American Law Institute.

Ironically, though, both CYA and TYC ignored the key feature of the Model Act, whose original intent was to create a separate judicial and institutional system for "youthful offenders" between the ages of 17-21. Victimizers in the juvenile system, this age group became victims in the adult system. And rehabilitation proved nearly impossible in either system.

For a variety of reasons, states ignored this provision when they adapted the Model Act to their own situations in the 1940s, but it may be an idea deserving of reconsideration.

As an indication of how badly things are going at the Bexar County probation department, check out the list of problems Greg Harman at the San Antonio Current had to overlook to identify the agency's biggest problem ("Breasts, toes, and probation," Jan. 28):

How bad is it at Bexar County’s Community Supervision?

Not taking into account the administration’s unwillingness to reconsider months of revocations triggered by drug tests that were more than likely faulty — it’s bad. [See “Test-tube maybes,” October 1, 2008.]

Without even considering the persecution of a highly visible union-organizing employee and an internal clampdown on union members — it’s still bad.

Beyond the “subjective” preponderance of evidence — to which we must now add a fresh sexual-harassment suit against Probation Chief Bill Fitzgerald — some newly released numbers reveal embarrassingly serious failings in the department.

Harman explores why the Bexar County probation department has the highest revocation rates of any large county in the state:

A December 1, 2008, report to the state Legislative Budget Board by the Texas Department of Criminal Justice reveals that the number of felony revocation rates in Bexar County shot up 80 percent between 2005 and 2007. The trend is doubly worrisome because revocation rates have dropped significantly in the state’s other major metro areas. During this same time period, check: Harris County (down 13.6 percent), Dallas County (down 10.7 percent), Tarrant County (down 16.8 percent), El Paso County (down 8.4 percent), and Travis County (down 19.6 percent).

Holy urine-analysis jokes! What gives?

To make sense of the rising numbers, the Texas Department of Criminal Justice sent a team of auditors in February 2008 to dig through Bexar County Probation files. After reviewing 198 randomly selected cases, the five auditors reported back that the department’s case managers had not been trained in the basics of so-called “progressive case management” methods. Progressive case management, supposedly adopted by Bexar County in 2005, is a methodology aimed at reducing the number of probationers that end up being sent back to jail by providing case managers with a range of punishment-reward options. According to the state, this should include reduced caseloads to allow for more aggressive monitoring, use of inpatient and outpatient drug and alcohol treatment options, and options for that carrot of carrots: Early probation termination.

All departments receiving funds through CJAD are required to use progressive case management. Bexar County Probation recently received more than $6.5 million from the state for supervision and caseload reduction.

The auditors’s revocation-compliance review, released last month, also found that case officers followed the required progressive sanctions model in only 35 percent of [probation] violations that didn’t include a new arrest, and in only 23 percent of those probation revocations involving new arrests. Not only had most case workers not been trained in using progressive sanctions, managers weren’t stepping in to forge alternatives to revoking probation, the auditors wrote.

“Case files directed to courts with a [Motion to Revoke, or MTR] reflected few manager interventions when other levels of sanctions within the PSISM remained available,” the audit states.

The department’s other failings include overall poor management of case records and “conflicting practices” between Probation, district and county court-at-law judges, and the District Attorney’s office.

Bexar probation's poor performance could, and should, cost them hard dollars if they're not willing to use state grants for the purpose they were given:

Could Bexar County’s poor performance mean a drop in state funds, we asked CJAD Director Bonita White. “It is possible that CJAD will decrease funding for Bexar CSCD in the future,” White said. “However, our goal is to work with the Bexar CSCD to help them keep more probationers successful, and thereby truly increasing public safety.”

With a new Speaker of the Texas House from Bexar County, it's perhaps unlikely Bexar would lose funding during the 81st Legislature. But by the same token, CJAD shouldn't be forced to continually throw good money after bad. Somebody should be holding Bexar probation chief Bill Fitzgerald responsible for his department's poor performance - the judges on his governing board sure aren't doing it.

Tuesday, January 27, 2009

Last year Governor Perry pushed for new prisons in his State of the State speech, but this year, happily, and perhaps tellingly, he's abandoned that unfulfilled wish.

The only significant criminal justice priority in today's State of the State speech, reports the Fort Worth Star Telegram, was when Gov. Perry "called for $135 million to strengthen the state-led enforcement effort to confront what he called a continued threat from 'brazen transnational gangs' tied to Mexican drug cartels." I didn't see that number in the prepared remarks, but here's the portion of the speech related to border security and immigration:

In these times of global unrest and porous borders, security remains a top priority, especially in light of Washington’s ongoing failure to provide the resources necessary to secure our border, or implement a sensible immigration policy.

I’m hopeful that my fellow border governor from Arizona will bring a better approach in her new role as Secretary of Homeland Security.

However, until we see results, Texas will continue filling the leadership void created by Washington DC and investing in the safety of our citizens with our own border security effort.

From 2005 until September 2007, my office cobbled together roughly $38 million which we used to ramp up security along our border.

Based on the success of these efforts, you invested $110 million in Operation Border Star in 2007.

In doing so, you not only funded more personnel, but also provided assets like aircraft and patrol boats, as well as better technology for communications, data management and coordinated efforts.

Joining us today are representatives of the team protecting our border. Will you please stand and be recognized?

They represent the hardworking men and women who work together to fight crime, including the Texas Border Sheriff’s Coalition, the Brownsville Police Department, the Department of Public Safety, Texas Parks and Wildlife, Texas Military Forces, and the U.S. Border Patrol

Thank you for working so hard to keep Texas safer. As a result of your efforts and their deterrent effect, illegal alien apprehensions in Texas have dropped 47% since 2005.

Crime has also fallen as much as 65% in areas that smuggling cartels previously treated as their personal playground.

Those are signs of great improvement, but we need to keep the heat on by renewing funds for our border efforts, especially in light of the growing drug and gang-related violence in Mexico.

It is already spilling into communities across the state in the form of increasingly brazen transnational gangs.

Because we have seriously hindered the Mexican drug cartels’ ability to move contraband across the border, they are relying with increasing frequency on these unprincipled gangs to do their dirty work.

Originating in foreign countries and taking shape in our prisons, these gangs have been radiating outward into our towns, schools and neighborhoods, applying terror tactics to build their influence.

Joining us here today are State Troopers John Cox and Chad Foster, who were recently on the receiving end of gunfire while protecting our state from those threats, including gang members. Would you please stand and be recognized?

Gentlemen, thank you for standing between the law-abiding citizens of our state and those who would do them harm.

I also want to thank Senator Carona for his efforts to bring attention to the serious threat these gangs pose to our state.

I agree it is time to act and believe we should devote the necessary resources, just under $32 million, to properly address this gang threat head-on, in communities across the state.

These funds would be used to pay more officers, provide better coordination of multi-force efforts and fund prosecutions for gang-related offenses.

As we continue to strengthen our border, we must also consider the essential role that federal immigration policy, or the lack thereof, plays in the safety of our citizens and integrity of our state.

After revelations that a Dallas man had set up a cottage industry procuring Texas driver licenses for illegal aliens hailing from countries around the world, I am an even stronger supporter of the DPS initiative to issue specialized, vertical driver licenses, to identify those who have overstayed their visa.

I also support an end to the notion of sanctuary cities. Local government sends the wrong message when they pick and choose what laws they want their peace officers to enforce.

I believe we should also require the same identification procedure for voting that we require for voter registration. I commend Lt. Governor Dewhurst for his longstanding leadership on this issue.

A democracy without proper protections against voter fraud cannot preserve the public trust.

We should also track the citizenship status of those receiving state-funded services so we can get our hands around the financial impact of Washington’s failure to handle the immigration challenge.

Some may oppose these efforts, but they are commonsense approaches to protecting our citizens’ lives and resources, as well as our state’s integrity.

Although we are maintaining a more secure border and preparing to combat the growing gang threat in our cities, there is nothing we can do to divert the storms that hammer our coast.

I also don't understand what he means about local governments that "pick and choose what laws they want their peace officers to enforce." It's federal law that prohibits local law enforcement from arresting people for civil immigration violations, not some local mandate.

Border security topics took up a big portion of the Governor's speech, so it appears to be a significant priority for him, as it was in 2007. I'm guessing that in the current budget climate, though, some legislators might look askance at spending another nine figures on border security grants that recent reports say generated little crime fighting bang for the buck.

Commitee assignments haven't been made yet in the Texas House, but the Austin Statesman's Mike Ward reported yesterday that under a new, proposed committee structure contemplated in proposed House rules:

the House Corrections committee would lose its authority over the Youth Commission. It would be moved to a new Juvenile Justice Committee, which would also oversee the Office of Independent Ombudsman.

In the past two years since a sex-abuse and coverup scandal, the Corrections Committee has pressed Youth Commission officials hard to fully implement reforms — too hard, agency officials have complained. They have continued to drag their feet at being held accountable for continuing problems, committee members and staffers have countered.

The change comes as the Sunset Advisory Commission recently recommended a merger of the Youth Commission and the state Juvenile Probation Commission, a change that both agencies — and some aides to Gov. Rick Perry — have opposed.

Word is circulating fast and furious this afternoon that Madden, a longtime supporter of deposed House Speaker Tom Craddick, may get the boot as chairman of House Corrections.

However, I'm not sure I agree with Ward's assessment that:

By ending the Corrections Committee’s authority over the Youth Commission, the agency could perhaps get an easier ride in the House this session. But that won’t help in the Senate, where the Criminal Justice Committee appears to want to keep the heat on the Youth Commission.

Supporters claim Madden and others have pushed too hard and should get the boot.

I'd imagine the change has more to do with greasing the skids for some version of a merger between TYC and the Juvenile Probation Commission, about which Madden had been skeptical, than some latent concern that Madden has been laying the whip too hard to TYC!

The former sheriff of Montague County has admitted sexually assaulting a woman after promising her he wouldn't arrest her when deputies found drug paraphernalia in her house.

Bill Keating, whose four-year term as sheriff ended Jan. 1, agreed Friday to plead guilty to a federal charge of deprivation of civil rights under color of law after he confessed to authorities that he had forced the woman to give him oral sex after a drug raid Nov. 14.

How is it that the situation in Montague County could have gone on until the Sheriff was entirely out of office? Literally the day he left, his successor shut down the jail and moved out all the prisoners. How long was this situation knowingly tolerated?

The Austin Statesman's Mike Ward reports that the state prison system's crackdown on cell phones and contraband have continued after a lockdown last fall supposedly began an era of "zero tolerance" ("Cell phone smuggling continues," Jan. 26):

More than 200 cell phones have been confiscated in state prison cellblocks since a system-wide shakedown for contraband ended in November, almost twice as many as were seized during the lockdown.

Eight of the phones were seized from death row, where the crackdown started after a condemned two-time murderer called — and then threatened to kill — a powerful state senator.

“We’ve got some hard questions to ask about the zero-tolerance policy they supposedly put into effect,” said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston.

“What do we have to do enforce zero tolerance? What we see doesn’t look like zero tolerance. Obviously, I’m still concerned.”

In truth I don't think "zero tolerance" can ever be more than a slogan in a prison system the size of Texas', just like I don't think it's possible to completely "seal the border."

The best that can be done is to implement systemic safeguards, checks and balances to try to vet as many points of access as possible, and identify inmates possessing contraband through use of informants, periodic sweeps, or other means. But zero tolerance is a sound bite, not a policy. Clearly TDCJ continued diligently searching for cell phones and other contraband after the systemwide lockdown ended last fall, but the reality seems to be that more comes in about as fast as they can find it.

At the prodding of former Dallas Cowboys football great Troy Aikman, National Football League Commissioner Roger Goodell will hold a press conference on Friday hailing the private high school football coach from Grapevine who engineered a surprise welcome for TYC football players from the Gainesville unit, including cheerleaders, vocal fans, a band, and a forty yard "spirit line" they ran through entering the stadium. (See prior Grits coverage.)

A story in the Fort Worth Star-Telegram the next day led to a column by ESPN's Rick Reilly. Troy Aikman made sure Goodell read it, leading to the invitation for this weekend. The fallout has helped Gainesville, too, with Williams noticing warmer welcomes at basketball games and more kids wanting to play football.

"Coach Hogan inspired an entire community in an extraordinary way and gave those young men on the Gainesville team a chance to believe in themselves," Goodell said. "It's a powerful message and shows how football can be such a positive force in shaping values and building communities."

In a sense, Coach Kris Hogan is right when he said, "I hate it that this thing that we did is so rare ... Everybody views it as such a big deal. Shouldn't that be the normal m.o., though?" But the truth is what happened that night in Grapevine really was rare, special and inspirational - an act of compassion that transcended sports.

Good for Aikman and Goodell and bully for Coach Hogan for this much-deserved recognition.

MORE: I'd missed this excellent, extensive coverage from the Fort Worth Star Telegram by sports reporter Dave Thomas, who covered the game for the paper.

Harris County officials are coming to grips with the causes of jail overcrowding now that the tanking economy means building and staffing a new jail is not an immediate option.

As has been discussed on Grits many times (see below), Harris County's main jail overcrowding problem stems from radical increases pretrial detention: "The number of people in [the Harris County] jail who are awaiting trial has grown by about 64 prisoners a month for the past two years and has more than doubled since 2001," reported the Houston Chronicle ("Harris County taking action to reduce jail overcrowding," Jan. 24).

The shortest distance between the two points would be for judges to reduce reliance on bail bondsmen and issue more personal bonds for petty offenders:

The new Democratic judges, for example, have indicated they will consider releasing more low-risk offenders on personal bonds, returning to a policy virtually abandoned in recent years when Republicans controlled the courthouse. Such bonds, better known as personal recognizance bonds, allow defendants accused of nonviolent crimes to leave jail without having to post bail.

The new judges and District Attorney Pat Lykos also hope the new mental health court just established will help with the problem of mentally ill "frequent flyers" soaking up jail space and resources:

The idea is to defer those defendants to treatment, rather than to repeatedly jail them for relatively minor crimes such as loitering or trespassing.

New Republican District Attorney Pat Lykos also hopes to launch a pilot project to divert nonviolent, mentally ill defendants with less severe diagnoses to a secure facility where they can receive medical care and counseling.

Perhaps the most encouraging aspect of the article is the idea that officials are taking this issue seriously at all.

Major Mike Smith, who runs the jails for new Democratic Sheriff Adrian Garcia, said he has been overwhelmed with requests for meetings with judges, prosecutors and other officials who want to discuss ideas for reducing the inmate population.

“That’s the ultimate answer — to get some of these people out of the jail and into other locales or in the free world where they’re under monitored supervision or enhanced bonding,” Smith said.

For years the only response we ever heard from Harris County pols in response to jail overcrowding was "build, baby, build." Now, though, that approach has become financially untenable; even "Former Sheriff Tommy Thomas postponed plans to build a new 1,100-bed jail in Atascocita amid concerns he would not be able to fully staff the facility." Now, Maj. Smith says he doesn’t "think we can build our way out of the overcrowding issue."

With new judges, a new DA and a new Sheriff, there's reason for optimism, to be certain, but the changes in bail policy are all prospective - nothing's happened yet:

Criminal defense lawyer Mark Bennett said he has not seen signs of a policy shift, but is optimistic one is coming. Holding defendants who pose no threat of hurting someone or fleeing keeps them from going to work and caring for their families, he said. A lot of people plead guilty just to get out of jail quickly, including some who probably are innocent, he added.

Still, the discussion among key players seems more constructive and on point than in the past. There's little doubt they're focused on categories of offenders - pretrial detainees and the mentally ill - where Harris County's "tuff on crime" tactics have been needlessly tough on taxpayers without a commensurate improvement in public safety.

Kudos to new Travis County DA Rosemary Lehmberg for altering her department's longstanding policy of making defense lawyers copy police offense reports by hand instead of giving paper or electronic access. Keith Hampton, the legislative chair of the Texas Criminal Defense Lawyers Association, wrote in the Austin Statesman ("Key legal reform would serve the interests of justice and taxpayers," Jan. 23) about the new policy change, contrasting it with Williamson County, where such reports are kept secret until trial:

For years, the court-appointed lawyer would appear in court to read the police report which he would then laboriously write down in his notepad. This elaborate discovery process meant tax-paid hours for lawyers to hand-write reports which today can be transmitted electronically and at virtually no cost. The Travis County district attorney's office has taken this quill-and-ink criminal procedure directly into the electronic age, saving time and money, and ultimately contributing to justice.

In leading the way on this cost-saving measure, Lehmberg also reaffirmed the fundamentals of our system and demonstrated confidence in the quality of her prosecutors. A prosecutor whose sole aim is to see justice is done is unafraid that his adversary may be reading from the same report — after all, an accurate and thorough investigation convicts the guilty and protects the innocent. Unfortunately, maintenance of secret police reports is still the norm in some jurisdictions, such as Williamson County.

The Williamson County district attorney's office not only denies counsel copies of reports duly prepared by police agencies, but even refuses to permit lawyers to read from them. Counsel is entitled to review the reports only at trial — a little late, if you are the unfortunate person on trial for a crime you didn't commit. This attitude reflects a neurotic insecurity about the talent and skill of its own prosecutors as well as distrust of the honesty and competency of local law enforcement. Worse, it suggests a need to hide police reports to maintain an unfair advantage, a policy elevating conviction rates above the interests of justice. Police reports should enter the sunshine of the adversary system earlier, more efficiently and more justly, as state lawmakers are preparing to ensure.

The police-report secrecy policy is driving lawmakers to consider discovery reform once again. One measure would mirror Lehmberg's approach as a model for the rest of Texas, which leaves discovery largely in prosecutors' hands. Another proposal would create a more elaborate, mutual discovery process. In either case, Travis County is ahead of the rest of the state and has demonstrated how efficiency and fairness are not mutually exclusive.

Saturday, January 24, 2009

The Juvenile Probation Commission has posted on its website this summary (pdf) of how Texas' largest counties spent grants given to their juvenile probation departments to divert chronic, serious offenders away from youth prisons as part of the 2007 SB 103 reforms. These eight pilot programs diverted youth from TYC for an average cost of $2,416.50 in FY 2008, with varying degrees of success.

I pulled these topline summaries of the different county programs from the report:

"Bexar County developed the Intensive Community Based – Kids Averted from Placement Services (ICB-KAPS) program. ICB-KAPS is an in-home family services program for offenders at risk of serious, violent, or chronic delinquent behaviors. ICB-KAPS is provided by the Teen and Youth Services division of Baptist Child and Family Services. ... Average spending per participant was $4,500."

"Cameron County developed two programs. From December through May, the department operated a program called the One Stop Intervention Program. Due to construction restraints and the Courts’ request for a more punitive approach, the County replaced the One Stop Intervention Program with the Saturday Academy which was operated from the beginning of July until the end of August. ... Average spending per participant was $1,136."

"Dallas County expanded their existing family preservation and home detention supervision programs to create the Dallas County Intensive Community Based Program. ... Average spending per participant was $2,647."

"Denton County developed a new program called the TARMAC Program (Take Action, Re-Integrate, Make A Change). The TARMAC Program is an afterschool program that helps at-risk juveniles and their families learn skills to achieve their academic goals, become more successful at school and prepare for life. Denton County contracts with Communities in Schools of North Texas to provide services. ... Average spending per participant was $1,531."

"El Paso County expanded their existing Serious Habitual Offender Comprehensive Action Program (SHOCAP). The SHOCAP team consists of four juvenile probation officers, two field compliance officers (certified detention officers), and three El Paso Police Officers. ... Average spending per participant was $2,083"

"Harris County created the Harris County Advocate Program. The program relies on collaboration with child welfare, juvenile justice, behavioral health, disability and education systems to develop and offer community-based alternatives for the highest risk juveniles and their families. ... Average spending per participant was $1,092."

"Tarrant County created Project ASPECT, a new intensive community-based program targeting juvenile offenders who would have been eligible for commitment to TYC under prior law. ... Average spending per participant was $1,452."

"Travis County expanded the capacity of the Travis County Juvenile Probation Day Treatment Program. This program provides evidence-based intensive substance abuse treatment and academic instruction for youth between the ages of 13 and 17 who might otherwise be placed in a secure care institution for issues of substance abuse and delinquent behavior. ... Average spending per participant was $4,891."

DNA may have identified another innocent man convicted and sentenced to Texas death row, says a Houston Chronicle editorial ("Room for Doubt," Jan. 23), but he'll die on Tuesday unless Governor Perry stays the execution:

Larry Ray Swearingen has lived on Texas death row for eight years, convicted of the rape-murder of a Montgomery County coed in 1998. He is scheduled for execution by lethal injection in Huntsville next Tuesday, despite the fact that a growing body of evidence indicates he could not have strangled 19-year-old Melissa Trotter and dumped her body in Sam Houston National Forest. ...

While plenty of circumstantial evidence indicated Swearingen, a convicted rapist, was a logical suspect, forensic facts not presented at his trial point elsewhere. Trotter’s body was discovered 10 years ago on Jan. 2, nearly a month after her disappearance from the Montgomery College campus in Conroe.

However, Swearingen was jailed on traffic warrants three days after the woman went missing. Although prosecutors theorized that Trotter was killed and her body dumped in the forest the day of her disappearance, the corpse was amazingly well preserved when discovered. Six physicians and forensic scientists who reviewed the evidence concluded that the victim died well after Swearingen’s arrest.

Former Harris County Chief Medical Examiner Joye Carter, who testified against Swearingen in his trial, reexamined the physical evidence and has concluded that Trotter’s death occurred at least a week after Swearingen was taken into custody.

One expert, using a technique familiar to viewers of the CSI TV series, confirmed that finding by dating the development of insect larvae in the victim’s body.

Other exculpatory evidence included blood samples found under Trotter’s fingernails and a pubic hair recovered from a vaginal swab that came from someone other than Swearingen. ...

Dr. Glenn Larkin, a retired forensic pathologist who reviewed the case, told Texas Monthly that “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”

Thus far, only the Texas Court of Criminal Appeals has seen the opinions from the four forensic pathologists.

The state's highest criminal court, however, did not rule or comment on the information. Instead, the court dismissed Swearingen's petition for violating state laws that limit death row inmates to one petition for a writ of habeas corpus unless lawyers uncover information that was not available when the first appeal was filed.

The appeals court has yet to rule on a stay of execution motion that repeats the forensic conclusions.

The opinions from the forensic pathologists also were included in a plea to Gov. Rick Perry to issue a 30-day execution reprieve.

Swearingen also has two federal petitions pending based on the forensic information. He is asking the 5th U.S. Circuit Court of Appeals for permission to bring the findings to a U.S. District Court for review, and he is asking the U.S. Supreme Court to review the case.

Texas Attorney General Greg Abbott has opposed both requests, saying Swearingen has not met federal requirements to pursue an innocence claim and is, in fact, not innocent.

In such instances, I'm hard pressed to understand why prosecutors or the AG are so gung ho dismiss a viable actual innocence claim without vetting it thoroughly. After all, if Larry Swearingen didn't do it, that means the real killer is still out there.

It's similarly hard to see how the Court of Criminal Appeals members could sustain this conviction, ignoring on a legal technicality the recantation of the state's own forensics expert. Certainly that should meet the standard that "no reasonable jury" could have convicted Swearingen, knowing then what we know now.

Nationwide, about 2.3% of capital convictions are later overturned because the defendant was actually innocent, found a recent study out of Michigan State. The Court of Criminal Appeals' conduct in this case makes you wonder how many more were innocent but executed anyway.

Ana Yañez-Correa, executive director of the Texas Criminal Justice Coalition, says her nonprofit lost $119,000 in JEHT support for its juvenile justice program. “I’ve got a short amount of time to fill that gap,” she says. “Or else we have to let our program staff go.”

On the other, it's likely these issues would never even have come to light two or three years ago before the Office of Inspector General was created, and no prison - adult or juvie - is immune to corruption of youthful, underpaid, unqualified staff.

When you have a 23-year old guarding high school age youth, the risk they'll find they have more in common with the inmates than with their employer is always there.

It's also notable that the judge insisted on a harsher sentence than the District Attorney had agreed to; clearly officialdom is treating TYC cases a lot more seriously than in the past, for good or ill.

So the checks and balances installed at TYC appear stronger than in the past, but the agency sure could use a respite from the hail of bad news over the last couple of years. Mr. Spain did his coworkers no favors.

The State of Michigan could save $262 million in prison costs by 2015 by bringing parole policies in line with other states – and releasing thousands of prisoners earlier – according to a yearlong analysis of crime and punishment conducted by national policy center. ...

The key recommendation, to require most prisoners to be released after serving 120% of their minimum sentence, was endorsed by Republican and Democratic lawmakers and representatives of Gov. Jennifer Granholm, who have been working with the center on the analysis.

Reacting to news that Dallas police will change their policy to require "blind" administration of photo lineups and showing photos one at a time instead of in a group, the Corpus Christi Caller Times editorialized today that, "If blind sequential lineups can reduce eyewitness mistakes, as the studies indicate, then every police department in Texas should be using that procedure."

Sen. Rodney Ellis, readers will recall, has filed SB 117 that would require Texas law enforcement agencies to create or modernize policies on conducting photo lineups - 88% of departments don't have any, and most that do don't conform to current best practices.

1) The BP agents committed a crime, covered it up, and deserved to be punished.

2) Their sentences were too long because of federal mandatory minimums sweepingly applied in an utterly undiscriminating fashion.

3) Therefore the commutations were justified based on the specifics of the cases, but

4) There are many, many thousands of similarly situated offenders who also received excessive, unfair prison terms under federal sentencing guidelines, so

5) It’s hypocritical to pick out two defendants whose commutations pander to Lou Dobbs and the right wing base while not applying the same principles of justice to others who are subject to indefensibly long mandatory minimums.

Wednesday, January 21, 2009

The US Supreme Court has said executing the mentally retarded is unconstitutional, but the mentally ill are still fair game. Dr. Lucy Puryear, a clinical psychiatrist from the Baylor College of Medicine offers a thoughtful discussion at Women in Crime Ink regarding the astonishing case of Andre Thomas, a schizophrenic death row inmate who plucked out his only good eye and ate it (he'd pulled the first one out while sitting in jail awaiting his capital murder trial), adding a whole new dimension to the biblical adage, "an eye for an eye."

In 2004 Andre Thomas killed his wife and children, cut their hearts out, put the hearts in his pocket, and walked outside. He then went home, put them in a plastic bag and threw them out. He stabbed himself three times in the chest and then walked into a police station to report his crime.

But while most of the public debate about Thomas revolves around whether he should be executed for his crime, Dr. Puryear offers a more constructive reaction, wondering how his crime might have been prevented in the first place:

To those of you who would suggest that I am soft on crime, consider this novel idea. How about we make mental health treatment available in the community to those who need it. Had Mr. Thomas been adequately treated and monitored he never would have killed his family or plucked out his eye. Three people would be alive today and an enormous amount of money would be saved keeping him out of the prison system. That's not soft on crime, that's preventing crime.

Excellent point! Given that Andre Thomas had twice sought psychiatric help at a local hospital in the weeks before he murdered his family, these observations are particularly salient. In the comments section she added:

I am not suggesting that being mentally ill is a get out of jail free card.

I am saying that the system is broken. That people with severe mental illnesses often do not receive adequate care in the community. It can take three months or longer to get an outpatient appointment in our "free" (paid for by taxpayers)mental health system in Harris County. While waiting for these appointments people go off of their medications, become ill, and SOME commit crimes.

There may be one way to make some sense out of the issue of the mentally ill who commit crimes. Several communities have Mental Health Courts. These courts are in place for those defendants who have histories of mental illness before committing a crime, or committed a crime while mentally ill. The lawyers, judges, and others assigned to these courts have special training in mental illness and are equipped to knowledgeably handle these defendants. Instead of the revolving door from prison to back on the streets where psychiatric care is lacking, then back in prison when another crime is committed, these persons can be put into a system where follow-up is mandatory and resources are available. Another example of not being soft on crime, but preventing crime.

And in the comments, the good doctor mentioned a common sense solution for mentally ill offenders who go off their meds:

When I worked briefly in Ohio we could get outpatient commitments that meant that a patient was mandated to attend outpatient appointments. If they did not show they could be picked up and returned to an inpatient facility.

Dr. Puryear's post reminds us that by the time mentally ill people commit heinous crimes, we're having the discussion too late.

I really admire Lucy's professionalism and her common sense reaction to this sad, heinous case. While most of us, myself included, can do little but gape in awe at such a monstrous crime, her writing demonstrates an ability to perceive the thread of humanity underlying Thomas' illness and recognize that, even though a horribly tragedy occurred, the outcome wasn't inevitable. If society learns the right lessons, maybe more such horrific cases can be prevented in the future.

Maintaining basic state services over the next two years will cost Texas almost $84 billion, $3.7 billion more in general revenue than the state expects to raise during that period, according to the Senate budget introduced Tuesday.

However, a proposed 20% pay hike for adult prison guards and parole officers didn't make it into the draft budgets, nor did security improvements aimed at reducing contraband flows:

Among the budget increases proposed for Texas' prison system were $22.2 million for pay raises for correctional and parole officers, and $10.4 million in bond funds to repair the Hurricane Ike-damaged prison hospital in Galveston.

The proposed pay raises were far less than the $453.4 million sought by prison officials, and the budget did not address the $176 million needed for cost increases this year and the $66 million sought for security upgrades.

It's not at all clear TDCJ could safely operate without a much larger portion of the increases they've requested because past agency decisions to underpay staff, skimp on healthcare and ignore needed security improvements have backed officials into a financial corner. TDCJ'scost per prisoner in recent years has been artificially low and cannot be sustained at current levels.

I've said before, given TDCJ's understaffing crisis (they're around 3,000 guards short of minimum staffing), perhaps it's now time to consider actually reducing the size of Texas' Prison Nation in order to stave off rising incarceration costs.

If you add up every Texan currently in prison, on probation, on parole, or sitting in a county jail, it totals slightly more than the number of residents living in Austin - about one out of every 21 adults. At more than 737,000 people, they would make up the fourth largest city in the state after Houston, Dallas and San Antonio. Indeed, that's more than total 2004 populations of Washington, D.C. and four US states: Alaska, North Dakota, Vermont and Wyoming.

Can we really afford for the corrections system to supervise the equivalent of a major Texas city? According to TDCJ's official budget request, the agency needs around $1.2 billion extra over the next biennium to safely house the same number of prisoners it has now.

Alternatively, a bipartisan group of judges from Houston recently suggested another way to diminish new prison entries - reducing to a Class A misdemeanor charges against low-level, nonviolent drug offenders who possess less than a gram of a controlled substance. There are quite a few ways the Lege could skin that cat.

The Texas Legislature should at least ask the question: How many fewer prisoners would we have to have for the Department of Criminal Justice to a) live within its means and b) still provide adequate security and staffing?

Tuesday, January 20, 2009

Smart folks are still trying to work out whether the Herring case decided last week by the US Supreme Court narrowing the exclusionary rule is a big deal or a little one, and several good blog posts by attorneys have helped me think about the issue more concretely.

Kent Scheidegger even thinks "Herring may be setting the stage for the Holy Grail -- overruling Mapp v. Ohio," which extended the federal exclusionary rule to state courts. (That would be his "Holy Grail," btw, not mine.) He says that after Herring, arguably, "a defendant seeking to suppress evidence [must] establish not only that a Fourth Amendment violation occurred and no categorical exception applies, but also that there was ... 'deliberate, reckless, or grossly negligent conduct'." That would limit exclusion to an incredibly narrow class of cases.

Outside of federal court, for Texans, at least, the impact is much less profound. Robert Guest points out that Texas relies on our own state statutory exclusionary rule, not one created by federal courts.

So when you hear complaints that the exclusionary rule amounts to judges "legislating from the bench," that's a reference to the federal debate. In Texas, legislators crafted the rule back in 1925. The current version reads:

Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.... (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

Guest points out that the Texas Court of Criminal Appeals in 1999 already created the same loophole in Texas' exclusionary rule as SCOTUS just created in federal Fourth Amendment doctrine.

Tom Goldstein had expressed concern that Herring, for the first time, "extended the good faith exception to ordinary police conduct" (though Orin Kerr disagrees). Whatever the case, though, Texas' statute already has a "good faith" exception written into it that the CCA ruled allows evidence admitted from an arrest based on a recalled warrant - the identical circumstance that SCOTUS addressed in Herring.

So while the ruling will limit evidence exclusion in federal cases, for state cases, which involve the vast majority of police searches, the "new" extension of a good faith exception to police is mostly redundant - the Court of Criminal Appeals already went there years ago.

Herring also brought out more traditional, debates over whether the exclusionary rule is a viable public policy approach, regardless of whether it's created by the Legislature (as in Texas) or the federal courts. The National Review's Jonah Goldberg argued that "I don’t see why cops who break the rules intentionally or unintentionally should be punished by having objectively guilty criminals let loose on society."

These are good arguments and I’d be happy to scrap the exclusionary rule and return to the framing-era approach that put the constable at risk for personal liability whenever there was an unreasonable search or arrest, unless he had a warrant, in which case the magistrate who issued the warrant might be at risk if the warrant was improperly issued. But modern doctrines of official immunity — which are basically judge-made, and a result of “judicial activism” of the first order — make that impossible. There’s no constitutional basis for immunity on the part of police or their supervisors; it’s just something judges think is a good idea. Nonetheless, it’s not going anywhere — as part of my efforts to get something done about no-knock raids, I was recently told that, even in the Democratic Congress, it’s not going to be possible to do anything about official immunity.

Meanwhile, if you reward negligence, by letting cops who are negligent arrest people they’d otherwise be unable to, the cops — and, more importantly, their superiors, who might otherwise look bad if a guilty person is allowed to go free — wind up incentivized to be negligent. That increases the risk that innocent people will be subjected to unreasonable searches. In this imperfect world, the exclusionary rule is pretty much all we’ve got. But hey, if Jonah wants to join me in a campaign to get official immunity abolished or cut back, I’m ready.

If the alternative is a constitutionally originalist approach that eliminates judicial-invented immunity for police and prosecutors, I'd gladly agree there'd be little need for an overt exclusionary rule. Such matters could be handled in the civil courts, as the founders intended. Short of that, however, eliminating the exclusionary rule would remove the only significant institutional check on certain types of official misconduct without creating a viable alternative to prevent abuse.

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